TOMORROW'S CHOICE, INC., A FLORIDA CORPORATION, APPELLANT,
v.
BASSING CO., INC., A FLORIDA CORPORATION, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In a mechanic's lien foreclosure dispute between a building contractor and owner, the trial court entered judgment for the contractor and awarded the owner a partial set-off for defective work. On appeal, the owner challenged the court's jurisdiction and the exclusion of certain damages evidence, with the appellate court holding the trial court had jurisdiction despite a technical defect in lien procedures and reversing on the damages issue.
The court had jurisdiction to complete the cause because the owner admitted service of the affidavit and filed a counterclaim without raising the jurisdictional issue by motion to dismiss until after the contractor's case was complete. The trial court erred in sustaining the objection to special damages evidence because it had ruled that all pleadings would be amended to conform to trial evidence, allowing claims to be determined on their merits.
[1] A court has jurisdiction to proceed with a cause when a jurisdictional defect is not raised by a motion to dismiss and the party later participates in the proceedings.
[2] A trial court may amend pleadings to conform to the evidence presented at trial, allowing all claims to be determined on their merits.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the point was not presented to the trial court by a motion to dismiss. Instead, the owner admitted service of the affidavit "pursuant to the statute" and counterclaimed in the suit.”
Establishes that the owner waived the jurisdictional argument by not raising it timely and by engaging with the merits of the case.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceTomorrow's Choice, Inc. was the building owner and defendant; Bassing Co. was the building contractor and plaintiff seeking to foreclose a mechanic's …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Breach Of Contract (Counterclaim) cases and more on FLexlaw
PER CURIAM.
The appellant was the defendant and a counterclaimant in an action by the plaintiff-counterdefendant to foreclose a mechanic’s lien upon defendant’s building. The plaintiff had been the building contractor; the defendant was the owner. The counterclaim was for the allegedly defective and unworkman-like performance of the building contract. The trial resulted in a judgment (1) for the plaintiff contractor in the amount of $10,460.00 upon his claim and (2) for the defendant-counterclaimant owner in the amount of $1,066.00 as a set-off.
On this appeal, the owner contends that the court lacked subject matter jurisdiction because the contractor furnished the contractor’s lien affidavit required by Section 713.06(3)(d)(l), Florida Statutes (1975), four days before filing suit, instead of five days, as required by the statute. See Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So. 2d 769 (Fla.3d DCA 1975); and Falovitch v. Gunn and Gunn Construction Co., (Fla. 3d DCA 1976) released this date. We need not decide whether the use of the word “jurisdictional” in the cited cases means lack of subject matter jurisdiction, as the appellant contends, because the point was not presented to the trial court by a motion to dismiss. Instead, the owner admitted service of the affidavit “pursuant to the statute” and counterclaimed in the suit. The claim of “lack of jurisdiction” was not presented until plaintiff completed his case. Under these circumstances, we hold that the court had jurisdiction to complete the cause. Cf. Fleming v. Ossinsky, 117 Fla. 348, 158 So. 116 (1934).
The second point presented claims the judgment was against the manifest weight of the evidence. No error appears because the court properly allowed amendment of all pleadings to conform to the evidence and the amount found due on the contract is supported by the evidence.
The third point presented claims error because the trial judge sustained objection to an item of claimed damages on the counterclaim. The basis for the objection was that the damages claimed were special' damages and were not pleaded. Nevertheless, the court later ruled:
“That where any pleading in this case did not conform to the evidence submitted at trial, such pleadings were amended to conform to such evidence and proof so that all claims of both parties could be determined on their merits.”
We hold, therefore, that the court erred in failing to consider and rule upon the evidence as to damages which was objected to and subsequently tendered at the trial.
Affirmed in part, reversed in part and remanded for a new trial on the issue of damages upon the counterclaim.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Falovitch v. Gunn & Gunn Constr. Co., 348 So. 2d 560 (Fla. 3d DCA 1977)
-
Tomorrow's Choice, Inc. v. Bassing Co., Inc., 364 So. 2d 530 (Fla. 3d DCA 1978)…ppeals are by Tomorrow’s Choice, Inc., defendant/counter-plaintiff from a final judgment and an amended final judgment in a mechanic’s lien foreclosure suit. The cause was previously before this court in Tomorrow’s Choice, Inc. v. Bassing Co., Inc., 343 So. 2d 70 (Fla. 3d DCA 1977). By direction of this court, the cause was remanded for a new trial on the issue of damages on the counterclaim. At the conclusion of that trial, the judge found that the counter-plaintiff was not entitled to recovery and taxed co…
Authorities Cited
- Mardan Kitchen Cabinets, Inc. v. Bruns, 312 So. 2d 769 (Fla. 3d DCA 1975)
- Fleming v. Ossinsky, 117 Fla. 348 (Fla. 1934)